High Court Has Some Options For Abortion Ruling Abortion Challenges

FOCUS ON

June 23, 1991|by TAMAR LEWIN, The New York Times

The new Louisiana abortion law, the most restrictive in the country, Wednesday joined several others on their way to the Supreme Court. Any one of them could be a direct test of Roe v. Wade, the high court's 1973 ruling establishing the right to abortion, legal experts said.

A much less restrictive law in Pennsylvania is more likely to be the first one appealed to the court, if only because it is further along in the federal appeals process.

But Louisiana's law and two others, because they outlaw most abortions, would provide the court with a clear opportunity to reverse the basic thrust of Roe v. Wade, experts said.

In Baton Rouge, backers of the abortion measure said they hoped theirs would be the law that would eventually demolish Roe v. Wade.

The first step in the law's journey through the courts was taken Wednesday in New Orleans, where a federal judge agreed to hear a challenge to it next month. For now, abortion clinics may continue to operate in the state; Louisiana attorney general William V. Guste Jr. decided that the law could not take effect for at least two months.

The high court is free to decide to hear any, all or none of the state laws that are under challenge, legal experts said Wednesday.

Dawn Johnsen, legal director of the National Abortion Rights Action League, said her best guess is that Pennsylvania's will get there first. "And after that, there's the Guam law, the Utah law, and now the Louisiana law, any one of which could be the vehicle for overturning Roe v. Wade. The more of these laws there are out there, the more likely one will get to the Supreme Court."

As a practical matter, it makes little difference which state law ultimately provides the vehicle for reconsidering Roe v. Wade, for, should that decision be overturned outright, or modified significantly, the effect would not be to substitute a new federal law governing abortions. Rather, the decision would allow each state pass its own abortion law, with the high court decision for guidance.

With each new state law restricting abortion, the abortion-rights advocacy groups like the American Civil Liberties Union and Planned Parenthood face a nettlesome dilemma:

On the one hand, they feel compelled to challenge every restriction on abortion, knowing that if they do not fight the laws, many states could move to close off women's access to abortion.

On the other hand, they are aware that any court challenge they file could hasten the day when the Supreme Court reverses Roe v. Wade, and universal access to abortion is severely limited.

Both sides in the abortion debate agree that, with the newer members of the court, there is very likely a majority that favors allowing states to impose broader restrictions on abortion and that the court will accept a case on which to rule.

A proliferation of such laws not only makes it clear that the question cannot be avoided forever, but also gives the court a variety of different approaches to choose from.

The Pennsylvania law, which requires spousal notification, a 24-hour waiting period, and counseling about fetal development, was passed in 1989, found unconstitutional by a federal district court last year and argued before a federal appeals court in February, the final step before an appeal to the Supreme Court.

If the circuit court issues its decision this summer, as expected, and if the high court agrees to hear it, the Pennsylvania case could be argued before the Supreme Court in its next session, beginning in October.

Because the Pennsylvania case is about procedural obstacles to abortion and not a flat ban on most abortions, the Supreme Court could choose to hear the case but decide it narrowly. Thus it could sidestep the basic questions of whether, as abortion-rights groups would have it, abortion is a fundamental constitutional right, or whether, as anti-abortion groups put it, states have a compelling interest in the life of an unborn child.

The Guam law, which allows abortions only where pregnancy poses a grave risk to a women's health, or endangers her life, is the next likely candidate. The challenge to that law, which was also found unconstitutional by a federal district court, remains to be argued, to a federal appeals court.

Even there, there is an extremely remote chance that the court could avoid a flat-out reconsideration of Roe v. Wade.

"They could give health a broad interpretation, interpreting it to cover the mother's mental health, where the birth of the child would give her anguish, said Burke Balch, state legislative director of the National Right to Life Committee. "They could do that in the Utah, too, since health is in there."

The Utah law would ban most abortions, but would provide exceptions in cases of grave defect of the fetus or to the mother's health. But the state delayed enforcing its abortion ban pending the outcome of a lawsuit now in federal district court.

While legal experts say it is highly likely that either the Guam or Utah cases could lead to a broad ruling, only the Louisiana law, which does not make an exception for women whose health is endangered by pregnancy, would absolutely force the court to address the fundamental issues of Roe v. Wade.

But it may be several years before the Louisiana law makes its way to the Supreme Court, since the case must first be heard by a federal district court and a federal appeals court.